Ladewig v. Tremmel

• Decision Date: 16 June 2011
• Docket Number: No. 2010AP1925.,2010AP1925.
• Citation: 336 Wis.2d 216,802 N.W.2d 511,2011 WI App 111
• Parties: Cody LADEWIG, by his Guardian ad Litem, Alan E. GRISCHKE, Larry Ladewig and Rhonda Ladewig, Plaintiffs–Appellants,†v.John E. TREMMEL, Larry Winters, Janice Winters and Auto–Owners Insurance Company, Defendants–Respondents,Misty A. Franck, Defendant,Badgercare Plus Managed Care Program, Subrogated Defendant–Respondent.
• Court: Wisconsin Court of Appeals

336 Wis.2d 216

802 N.W.2d 511

2011 WI App 111

Cody LADEWIG, by his Guardian ad Litem, Alan E. GRISCHKE, Larry Ladewig and Rhonda Ladewig, Plaintiffs–Appellants,†

v.John E. TREMMEL, Larry Winters, Janice Winters and Auto–Owners Insurance Company, Defendants–Respondents,Misty A. Franck, Defendant,Badgercare Plus Managed Care Program, Subrogated Defendant–Respondent.

No. 2010AP1925.

Court of Appeals of Wisconsin.

Submitted on Briefs March 7, 2011.Opinion Filed June 16, 2011.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Alan E. Grischke of Grischke Law, LLSC, Wausau.On behalf of the defendants-respondents, the cause was submitted on the brief of John R. Shull, Jr., of Terwilliger, Wakeen, Piehler & Conway, S.C., Wausau.Before LUNDSTEN, HIGGINBOTHAM and BLANCHARD, JJ.BLANCHARD, J.

[336 Wis.2d 219] ¶ 1 This is a negligence action arising from dog-bite injuries to a child. A guardian ad litem and parents of the victim (collectively, the Ladewigs) brought the action against parties who include landlords Larry and Janice Winters. The dog was owned by two tenants of the landlords, and the attack occurred on property that the landlords leased to these tenants. The Ladewigs now appeal from dismissal of the action against the landlords on summary judgment.

¶ 2 The Ladewigs acknowledge the general liability rule in Wisconsin that, as a matter of public policy under Smaxwell v. Bayard, 2004 WI 101, 274 Wis.2d 278, 682 N.W.2d 923, a landlord is not liable in negligence for injuries caused by a tenant's dog, unless the landlord is an owner or keeper of that dog. However, the Ladewigs contend that an exception to this rule against liability applies here, based on the Restatement (Second) of Torts § 324A (1965). Section 324A creates liability in certain circumstances for an individual who assumes a duty by voluntarily undertaking to render services to another, when the first individual should recognize that his or her volunteered services are necessary for the protection of third parties. The Ladewigs contend that the landlords voluntarily assumed such a duty to third parties, including the Ladewigs, by using a lease provision that prohibited the tenants from keeping “vicious” dogs on the leased property. On this basis, the Ladewigs argue that because the landlords assumed a duty to enforce the lease provision, which they breached in failing to enforce it against the tenants, § 324A creates liability that is not precluded under the public policy rule of Smaxwell.

¶ 3 On the undisputed facts, we conclude that, even assuming without deciding that Restatement (Second) of Torts § 324A could create liability for landlords who use such a lease provision, Smaxwell applies to preclude liability on public policy grounds. That is, under the reasoning of Smaxwell, the landlords' ability to enforce the lease provision does not qualify them as owners or keepers of the pit bull at issue, and therefore they cannot be liable as a matter of public policy. Accordingly, we affirm the circuit court's summary judgment based on its conclusion to the same effect.

BACKGROUND

¶ 4 The relevant facts are not in dispute, and may be summarized briefly. Two tenants rented a single-family home from the Winters. The tenants invited their seven-year-old neighbor over to this property. While playing at their home, the child was attacked by a pit bull owned by the tenants, and sustained serious injuries.

¶ 5 The Ladewigs sued parties that included the landlords for injuries to the child. The Ladewigs allege that the landlords were negligent because they failed to exercise reasonable care in enforcing a lease provision against the tenants that prohibited the tenants from keeping vicious dogs, defined to include all pit bulls, on the leased property.¹

¶ 6 The landlords moved for summary judgment, arguing that they could not be held responsible for the acts of their tenants' dog, despite the “no vicious dogs” provision, because they were not owners or keepers of the pit bull kept by their tenants. The court granted the motion on that ground. The Ladewigs appeal the order granting summary judgment against them.

DISCUSSION

¶ 7 We review a grant of summary judgment de novo, employing the same methodology as the circuit court, and benefiting from the court's analysis. See Green Spring Farms v. Kersten, 136 Wis.2d 304, 314–16, 401 N.W.2d 816 (1987). When, as here, there are no genuine issues of material fact, the question is which party is entitled to judgment as a matter of law.² Wis. Stat. § 802.08(2) (2009–10).³

¶ 8 The legal issue presented is whether the rule set forth in Smaxwell, explaining public policies precluding landlord liability, does not apply when a landlord allegedly fails to enforce a lease provision that prohibits a tenant from keeping vicious dogs.

¶ 9 In order to establish a negligence claim, the Ladewigs must first prove that the facts meet the four elements of negligence. Smaxwell, 274 Wis.2d 278, ¶ 32, 682 N.W.2d 923. Second, even if the Ladewigs establish each of these elements of a negligence claim, liability for the negligence may be precluded as a matter of public policy. Id., ¶ 39.

[2] ¶ 10 Both parts of the analysis present questions of law that we review de novo. Stephenson v. Universal Metrics, Inc., 2002 WI 30, ¶ 15, 251 Wis.2d 171, 641 N.W.2d 158 (determination of the existence of a duty in negligence case presents question of law); Smaxwell, 274 Wis.2d 278, ¶ 40, 682 N.W.2d 923 (whether public policy precludes negligence liability is a question of law).

¶ 11 The four elements of negligence, as applied here, are: (1) the existence of a duty of care on the part of the landlords; (2) a breach of that duty of care; (3) a causal connection between the landlords' breach of duty of care and the injury; and (4) actual loss or damage resulting from the injury. Gritzner v. Michael R., 2000 WI 68, ¶ 19, 235 Wis.2d 781, 611 N.W.2d 906. With regard to the elements, the Ladewigs focus on the first, the existence of a duty. The general duty rule in Wisconsin is that “ ‘all persons have a duty of reasonable care to refrain from those acts that unreasonably threaten the safety of others.’ ” Smaxwell, 274 Wis.2d 278, ¶ 45, 682 N.W.2d 923 (citation omitted). Given this very broad duty of reasonable care, “the decision to preclude liability should normally be based on public policy, rather than the notion of duty.” Id.

¶ 12 This leads us to the second analysis, involving public policy. “[E]ven if all the elements for a claim of negligence are proved, or liability for negligent conduct is assumed by the court, the court nonetheless may preclude liability based on public policy factors.” Id., ¶ 39.⁴ Public policy analysis is separate from determining whether a duty exists. Id., ¶ 40. Before determining whether public policy considerations preclude liability, it is usually the better practice to submit the case to the jury for development of the record. Id., ¶ 41. However, “when the facts are not complex and the relevant public policy questions have been fully presented, this court may determine whether public policy precludes liability before trial.” Cefalu v. Continental Western Ins. Co., 2005 WI App 187, ¶ 9, 285 Wis.2d 766, 703 N.W.2d 743 (citing Gritzner, 235 Wis.2d 781, ¶ 26, 611 N.W.2d 906). As discussed below, we believe this is such a case.

¶ 13 With that background, we summarize the public policy rule against landlord liability in this context, as described in cases decided beginning in 1975, and then turn to the exceptional circumstances that the Ladewigs assert cause this action to be one that is not barred by the public policy rule of Smaxwell.

Common-law Liability of Landlords for Negligence Associated with Injuries Caused by a Tenant's Dog

¶ 14 The general rule prohibits landlord liability on public policy grounds. The Wisconsin cases that have examined the potential common-law liability of a landlord for injuries that a tenant's dog causes to a third party have consistently held that a landlord, as landlord, cannot be held liable for injuries caused by a tenant's dog. It is only when a landlord acts or fails to act while in the separate status of an owner or keeper of a tenant's dog that liability may arise.

¶ 15 In the first of the leading cases we rely on, the supreme court applied this rule ⁵ to preclude liability of an owner-resident landlord who allegedly was aware that the tenant in the duplex unit adjoining his unit had a vicious dog. Gonzales v. Wilkinson, 68 Wis.2d 154, 227 N.W.2d 907 (1975). The supreme court concluded that the complaint against the owner-resident of the duplex was not sufficient to state a cause of action in common-law negligence, because there was no allegation that the owner-resident was either an owner or keeper of the dog or had any control or dominion over the dog. Id. at 158, 227 N.W.2d 907. The court held that it did not matter that the owner-resident allegedly was aware that the tenant-neighbor was keeping the dog on premises owned by and ultimately controlled by the owner-resident, because the law does not require a landlord to fill the role of an insurer for the acts of a tenant. Id.

[336 Wis.2d 226] ¶ 16 An opinion of this court, subsequent to and citing Gonzales as authority, comes closer to the facts of this case, in that it involved an allegation of negligence premised in part on a landlord's failure to enforce a general “no pets” lease provision. Malone v. Fons, 217 Wis.2d 746, 580 N.W.2d 697 (Ct.App.1998). While we did not focus in isolation on the implications of the “no pets” lease provision,⁶ and we apparently were not presented with any argument based on the Restatement (Second) of Torts § 324A, we concluded that the landlord could not be held liable using reasoning relevant to this appeal. The dog-bite victim asserted that the landlord was liable in negligence for injuries caused by a tenant's dog, because the landlord failed to...